THURAIRAJA, PC, J

1. The instant case is an appeal against the dismissal of a revision application filed before the High Court of Civil Appeal of the Western Province Hoden in Colombo against an order dated 09^th February 2017 of the District Court of Colombo.

BACKGROUND OF THE CASE

2. The Respondent-Respondent-Respondent (hereinafter ‘Respondent’) above named and his mother, late Diasy Haththotuwa (née Jayawardena), had obtained several loan facilities from the Petitioner-Petitioner-Petitioner-Appellant Bank (hereinafter ‘Appellant’) by mortgaging the land and premises described in the Schedule to the Petition of the Appellant. Due to the default of such mortgagees to settle the monies due under the said mortgage bonds, the Board of Directors of the Appellant Bank had unanimously adopted a resolution to auction the mortgaged property in order to recover the outstanding sums.

3. After taking steps under the People’s Bank Act, No. 32 of 1986 (hereinafter sometimes the ‘Act’), the Bank had auctioned the property on 27^th August 2000. As there were no bidders at the said auction the Appellant Bank itself had purchased the said property on a Certificate of Sale No. 408 dated 06^th September 2000.

4. The position of the Appellant is that all rights, title and interest of the Respondent in the said property was thereby vested with the Appellant and that the Respondent thereafter wrongfully and unlawfully failed and neglected to hand over vacant and peaceful possession of the said property to the Appellant.

5. On this basis, the Appellant had instituted a case against the Respondent by Petition dated 22nd October 2003 in the District Court of Colombo bearing Case No. 6881/SPL under and in terms of the People’s Bank Act, No. 29 of 1961 as amended against the Respondent and said Daisy Haththotuwa. During the pendency of this case, this Court delivered the judgment in Ramachandra v. Hatton National Bank, [2006] 1 Sri L.R. 393. Now overruled by Sunpac Engineers (Private) Ltd & Another v. DFCC Bank & 11 Others, SC Appeal 11/2021, SC Minutes of 13th November 2023 which changed the paradigm which existed with respect to the parate execution of 3^rd party mortgages.

6. The Appellant states that they withdrew the said District Court case, reserving the right to file a new application, to consider the effects of the said judgment due to the uncertainty created vis-à-vis parate execution of 3^rd party mortgages by the same.

7. Subsequently, the Appellant had instituted a fresh case bearing No. DSP 261/2014 by Petition dated 11^th December 2014 in the District Court of Colombo under Section 29P of the People’s Bank Act as amended seeking an order for delivery of possession. The Appellant states that, at the time of filing this second Petition, the original of the aforementioned Certificate of Sale has been misplaced and/or lost subsequent to the withdrawal of the earlier petition.

8. The Respondent contends that when the Appellant Bank passed the resolution to auction the mortgaged property and attempted to auction the same, his mother, late Diasy Haththotuwa (nee Jayawardena), instituted action bearing No. 5712/SPL in the District Court of Colombo seeking to prevent the Appellant Bank from so auctioning the property. The District Court had subsequently issued an enjoining order on 24^th August 2000 preventing the Appellant from auctioning the property.

9. The Respondent further states that the Appellant carried out this auction in contravention of this enjoining order, thus rendering the auction, as well as all other actions pursuant thereto, illegal. However, neither the legality of the auction nor the validity of the Certificate of Sale have been placed as questions before this Court.

10. Following the aforementioned 2014 Petition filed by the Appellant, the learned District Judge has issued an order nisi in favour of the Appellant. However, at the conclusion of the inquiry, the learned Judge has opted to dissolve the said order nisi by order dated 09^th Febru